Council tax payment allocation in accordance with R. v Miskin Lower Justices [1953]

The request was successful.

Dear Tunbridge Wells Borough Council,

The Council makes the statement quoted below from the link:
https://www.whatdotheyknow.com/request/a...

"Where a payment is received which does not match any payment due, our system will automatically apply it to the oldest debt "

The council's statement above does not agree with the judgment in the case of R. v Miskin Lower Justices (see below link to the judgment):

http://s000.tinyupload.com/index.php?fil...

The judgment clarifies the position in cases where a creditor has to make a decision as to which account payment should be allocated when a debtor has one account more burdensome for him than another and his payment is unspecified

Clearly the council's statement, if it were to agree with the judgment, would be.....

[[ Where the debtor does not make any reference as to where the payment should be allocated then the creditor must allocate the payment to the account which it is most beneficial to the debtor to reduce. ]]

Q. Where did the council obtain the information regarding the appropriation of payments case law which conflicts with the judgment in R. v Miskin Lower Justices [1953]?

Yours faithfully,

S Staffordson

info (TWBC), Tunbridge Wells Borough Council

This is an automated response to thank you for your e-mail to Tunbridge
Wells Borough Council and to confirm that it will be forwarded to the
relevant department/officer to respond to.

 

If you have access to the Internet you may wish to see if your enquiry can
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Town Hall

Royal Tunbridge Wells

Kent  TN1 1RS

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

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FOI (TWBC), Tunbridge Wells Borough Council

2 Attachments

Dear S Staffordson,

Acknowledgement

Our Ref: FOI F08304

Thank you for your recent email which we are handling in accordance with
the Freedom of Information Act 2000. I acknowledge receipt and confirm
that we will respond within 20 working days from the date of receipt; by
no later than 11^th October 2019.

In the meantime, if you have any further queries regarding our Freedom of
Information procedures please contact the team on 01892 554077 or via
e-mail to [1][email address].

 

Yours sincerely

 

 

 

Katherine Reynolds

Corporate Governance Assistant

 

T: 01892 554478

E: [2][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[3]www.tunbridgewells.gov.uk   

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [Tunbridge Wells Borough Council request email].

References

Visible links
1. mailto:[email address]
2. mailto:[email address]
3. http://www.tunbridgewells.gov.uk/

FOI (TWBC), Tunbridge Wells Borough Council

3 Attachments

Dear S Staffordson,

Re: FOI F08304

Thank you for your Freedom of Information request.

Please find below the response to your recent request. The information has
been provided by our Revenues and Benefits Team.

Response: We do not have a written policy, however, where a payment is
received which does not match any payment due our system will
automatically apply it to the oldest debt irrespective of the recovery
action being taken. If that  debt is currently in the process of another
recovery action E.G Charging order or Attachment of Earnings then then
once identified it will be manually moved to the oldest non-secured debt.

A customer can choose to have the payment applied to a debt with a
recovery action against it so that it can be cleared and the Charging
Order or attachment removed. Such a request would need to be completed in
writing.

Where the value of a payment received equals that of an instalment/amount
owing, the payment will be credited to the relevant matching amount
regardless of to which year that bill relates.  This is in accordance with
the precedence set in the case of R v Miskin Lower Justices 1953

I hope this information is helpful and if there is anything further I can
help with please contact me on 01892 554077 or via email to
[1][email address

If you are dissatisfied with the information provided or the way in which
we have dealt with your request, you can request a review.   Please write
to Patricia Narebor, Head of Legal Partnership and Monitoring Officer at
the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to
[2][email address]  requesting a review of the
decision.

We will aim to deal with your request within 20 working days. If you
remain dissatisfied following our review, you can then appeal to the
Information Commissioner.

 

Yours sincerely

 

 

 

Katherine Reynolds

Corporate Governance Assistant

 

T: 01892 554478

E: [3][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[4]www.tunbridgewells.gov.uk   

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [Tunbridge Wells Borough Council request email].

References

Visible links
1. mailto:[email address]
2. mailto:[email address]
3. mailto:[email address]
4. http://www.tunbridgewells.gov.uk/

Dear FOI (TWBC),

Thank you for your reply. Your Revenues and Benefits Team have said that it does not have a written policy and states the following:

"Where the value of a payment received equals that of an instalment/amount owing, the payment will be credited to the relevant matching amount regardless of to which year that bill relates. This is in accordance with the precedence set in the case of R v Miskin Lower Justices 1953."

The request did not ask whether or not the council had a written policy. It asked where the information had been obtained regarding the appropriation of payments case law.

Perhaps here for example:
https://www.whatdotheyknow.com/request/4...

"The amount paid may so obviously relate to a specific liability that it would be an unwarranted assumption to allocate it elsewhere (R v Miskin Lower Justices (1953) 1 QB 533)."

Or here:

The Institute of Revenues Rating and Valuation (IRRV) 10 October 2002 Insight magazine

http://s000.tinyupload.com/index.php?fil...

"Thus, if the amount of the payment identifies the debt, then it must be allocated to that debt."

Yours sincerely,

S Staffordson

FOI (TWBC), Tunbridge Wells Borough Council

2 Attachments

Dear S Staffordson,

Re: FOI F08316

Thank you for your recent request for clarification.

I can confirm that your query has been passed on to the Revenues and
Benefits team who will provide a response shortly.

In the meantime, if you have any further queries regarding our Freedom of
Information procedures please contact the team on 01892 554077 or via
e-mail to [1][email address].

Yours sincerely

 

 

 

Katherine Reynolds

Corporate Governance Assistant

 

T: 01892 554478

E: [2][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[3]www.tunbridgewells.gov.uk   

 

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [Tunbridge Wells Borough Council request email].

References

Visible links
1. mailto:[email address]
2. mailto:[email address]
3. http://www.tunbridgewells.gov.uk/

FOI (TWBC), Tunbridge Wells Borough Council

2 Attachments

Dear S Staffordson,

Re: FOI F08304

Thank you for your recent request for clarification.

Please accept my apologies for the incorrect reference number on my
previous acknowledgement.

I can confirm that your query has been passed on to the Revenues and
Benefits team who will provide a response shortly.

In the meantime, if you have any further queries regarding our Freedom of
Information procedures please contact the team on 01892 554077 or via
e-mail to [1][email address].

Yours sincerely

 

 

 

Katherine Reynolds

Corporate Governance Assistant

 

T: 01892 554478

E: [2][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[3]www.tunbridgewells.gov.uk   

 

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [Tunbridge Wells Borough Council request email].

References

Visible links
1. mailto:[email address]
2. mailto:[email address]
3. http://www.tunbridgewells.gov.uk/

FOI (TWBC), Tunbridge Wells Borough Council

5 Attachments

Dear S Staffordson,

Re: FOI F08304

Thank you for your recent request for clarification.

I can confirm that we responded, as attached, confirming that we do act in
accordance with the precedence set in the case of R v Miskin Lower
Justices 1953. If you have any further questions please contact me on
01892 554077 or via email to [1][email address] .

If you are dissatisfied with the information provided or the way in which
we have dealt with your request, you can request a review.   Please write
to Patricia Narebor, Head of Legal Partnership and Monitoring Officer at
the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to
[2][email address]  requesting a review of the
decision.

We will aim to deal with your request within 20 working days. If you
remain dissatisfied following our review, you can then appeal to the
Information Commissioner.

 

Yours sincerely

 

 

 

Katherine Reynolds

Corporate Governance Assistant

 

T: 01892 554478

E: [3][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[4]www.tunbridgewells.gov.uk   

 

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [Tunbridge Wells Borough Council request email].

References

Visible links
1. mailto:[email address]
2. mailto:[email address]
3. mailto:[email address]
4. http://www.tunbridgewells.gov.uk/

Dear FOI (TWBC),

The following is this time stated:

"I can confirm that we responded, as attached, confirming that we do act in accordance with the precedence set in the case of R v Miskin Lower Justices 1953."

Apparently the council does not act in accordance with the precedence set in the case of R v Miskin Lower Justices, it does the opposite.

Yours sincerely,

S Staffordson

Dear FOI (TWBC),

You have my 11 October email to address and also the fact that my request asked where the information had been obtained regarding the appropriation of payments case law.

Yours sincerely,

S Staffordson

FOI (TWBC), Tunbridge Wells Borough Council

2 Attachments

Dear S Staffordson

 

FOI F08304

 

Your correspondence dated 11 October 2019 advised the following:

 

The following is this time stated:

 

"I can confirm that we responded, as attached, confirming that we do act
in accordance with the precedence set in the case of R v Miskin Lower
Justices 1953."

 

Apparently the council does not act in accordance with the precedence set
in the case of R v Miskin Lower Justices, it does the opposite.

 

Your correspondence dated 27 November 2019 requested where the information
had been obtained regarding the appropriation of payments case law. 

 

In response, the Council does not believe the appropriation of payments
conflicts with the judgement.

 

The purpose of the Freedom of Information Act 2000 is to allow individuals
access to all ‘recorded’ information’.  The guidance from the Information
Commissioner’s Office advises that the Act does not cover requests for
interpretations, to obtain answers from officers to questions raised or to
create new information.  

 

If you are dissatisfied with the information provided or the way in which
we have dealt with your request, you can request a review.   Please write
to Patricia Narebor, Head of Legal Partnership and Monitoring Officer at
the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to
[1][email address]  requesting a review of the
decision.

We will aim to deal with your request within 20 working days. If you
remain dissatisfied following our review, you can then appeal to the
Information Commissioner.

 

 

Yours sincerely

 

 

 

Katherine Reynolds

Corporate Governance Assistant

 

T: 01892 554478

E: [2][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[3]www.tunbridgewells.gov.uk   

 

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [email address].

References

Visible links
1. mailto:[email address]
2. mailto:[email address]
3. http://www.tunbridgewells.gov.uk/

Dear FOI (TWBC),

"Your correspondence dated 27 November 2019 requested where the information had been obtained regarding the appropriation of payments case law. "

I agree, so why have you interpreted the request to be something else?

Yours sincerely,

S Staffordson

FOI (TWBC), Tunbridge Wells Borough Council

Dear S Staffordson,

I can confirm that Tunbridge Wells Borough Council does not hold any recorded information regarding where the information had been obtained regarding the appropriation of payments case law.

The purpose of the Freedom of Information Act 2000 is to allow individuals access to all ‘recorded’ information’. The guidance from the Information Commissioner’s Office advises that the Act does not cover requests for interpretations, to obtain answers from officers to questions raised or to create new information.

If you are dissatisfied with the information provided or the way in which we have dealt with your request, you can request a review. Please write to Patricia Narebor, Head of Legal Partnership and Monitoring Officer at the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to [email address] requesting a review of the decision.

We will aim to deal with your request within 20 working days. If you remain dissatisfied following our review, you can then appeal to the Information Commissioner.

Yours sincerely

FOI Team

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

www.tunbridgewells.gov.uk

show quoted sections

Dear Tunbridge Wells Borough Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Tunbridge Wells Borough Council's handling of my FOI request 'Council tax payment allocation in accordance with R. v Miskin Lower Justices [1953]'.

When a decision is made with potentially legal implications the council is required to consult the Monitoring Officer and such procedures should be formally recorded. A decision that requires setting the parameters of a council tax payment processing system to automatically allocate non-specific payments to the oldest account rather than to the in-year account is one such decision.

If the proper legal process was followed when the decision was made then there will be a record of it comprising a background outlining the relevant legal requirements and risk assessment highlighting the degree to which the council would be exposed to legal challenge if not complied with.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...

Yours faithfully,

S Staffordson

Dear FOI (TWBC),

Can you please let me know how this review is progressing.

Yours sincerely,

S Staffordson

FOI (TWBC), Tunbridge Wells Borough Council

Dear S Staffordson,

Our Ref: FOI F08304

I can confirm that we are still processing your request for review - please accept our apologies for the delay.

In the meantime, if you have any further queries regarding our Freedom of Information/ Environmental Information Regulations procedures please contact the team on [Tunbridge Wells Borough Council request email] or write to the Monitoring Officer at the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to [email address]

Yours sincerely,

FOI Team

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

www.tunbridgewells.gov.uk   

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [email address].

Keith Trowell,

1 Attachment

Dear S Staffordson,

 

I refer to your e-mail of 16th December 2019 in which you requested a
review of the Council’s handling of your FOI request. This has been passed
to me and I must first apologise for the delay in dealing with your
request.

 

Your request for a review stated :

 

“Dear Tunbridge Wells Borough Council,

 

Please pass this on to the person who conducts Freedom of Information
reviews.

 

I am writing to request an internal review of Tunbridge Wells Borough
Council's handling of my FOI request 'Council tax payment allocation in
accordance with R. v Miskin Lower Justices [1953]'.

 

When a decision is made with potentially legal implications the council is
required to consult the Monitoring Officer and such procedures should be
formally recorded. A decision that requires setting the parameters of a
council tax payment processing system to automatically allocate
non-specific payments to the oldest account rather than to the in-year
account is one such decision.

 

If the proper legal process was followed when the decision was made then
there will be a record of it comprising a background outlining the
relevant legal requirements and risk assessment highlighting the degree to
which the council would be exposed to legal challenge if not complied
with.

 

A full history of my FOI request and all correspondence is available on
the Internet at this address:
https://www.whatdotheyknow.com/request/c...

 

Yours faithfully,”

 

Your initial request for information asked :

 

“Dear Tunbridge Wells Borough Council,

 

The Council makes the statement quoted below from the link:

https://www.whatdotheyknow.com/request/a...

 

"Where a payment is received which does not match any payment due, our
system will automatically apply it to the oldest debt "

 

The council's statement above does not agree with the judgment in the case
of R. v Miskin Lower Justices (see below link to the judgment):

 

http://s000.tinyupload.com/index.php?fil...

 

The judgment clarifies the position in cases where a creditor has to make
a decision as to which account payment should be allocated when a debtor
has one account more burdensome for him than another and his payment is
unspecified

 

Clearly the council's statement, if it were to agree with the judgment,
would be.....

 

[[ Where the debtor does not make any reference as to where the payment
should be allocated then the creditor must allocate the payment to the
account which it is most beneficial to the debtor to reduce. ]]

 

Q. Where did the council obtain the information regarding the
appropriation of payments case law which conflicts with the judgment in R.
v Miskin Lower Justices [1953]?

 

Yours faithfully,”

 

Following your initial request, the following response was issued to you
on 5th November 2019 :

 

“Thank you for your Freedom of Information request.

 

Please find below the response to your recent request. The information has
been provided by our Revenues and Benefits Team.

 

Response: We do not have a written policy, however, where a payment is
received which does not match any payment due our system will
automatically apply it to the oldest debt irrespective of the recovery
action being taken. If that debt is currently in the process of another
recovery action E.G Charging order or Attachment of Earnings then then
once identified it will be manually moved to the oldest non-secured debt.

 

A customer can choose to have the payment applied to a debt with a
recovery action against it so that it can be cleared and the Charging
Order or attachment removed. Such a request would need to be completed in
writing.

 

Where the value of a payment received equals that of an instalment/amount
owing, the payment will be credited to the relevant matching amount
regardless of to which year that bill relates. This is in accordance with
the precedence set in the case of R v Miskin Lower Justices 1953

 

I hope this information is helpful and if there is anything further I can
help with please contact me on 01892 554077 or via email to
[1][Tunbridge Wells Borough Council request email]

 

If you are dissatisfied with the information provided or the way in which
we have dealt with your request, you can request a review. Please write to
Patricia Narebor, Head of Legal Partnership and Monitoring Officer at the
Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to
[email address] requesting a review of the
decision.

 

We will aim to deal with your request within 20 working days. If you
remain dissatisfied following our review, you can then appeal to the
Information Commissioner.

 

Yours sincerely”

 

On 2nd October 2019 you replied :

 

“Thank you for your reply. Your Revenues and Benefits Team have said that
it does not have a written policy and states the following:

 

"Where the value of a payment received equals that of an instalment/amount
owing, the payment will be credited to the relevant matching amount
regardless of to which year that bill relates. This is in accordance with
the precedence set in the case of R v Miskin Lower Justices 1953."

 

The request did not ask whether or not the council had a written policy.
It asked where the information had been obtained regarding the
appropriation of payments case law.

 

Perhaps here for example:

https://www.whatdotheyknow.com/request/4...

 

"The amount paid may so obviously relate to a specific liability that it
would be an unwarranted assumption to allocate it elsewhere (R v Miskin
Lower Justices (1953) 1 QB 533)."

 

Or here:

 

The Institute of Revenues Rating and Valuation (IRRV) 10 October 2002
Insight magazine

 

http://s000.tinyupload.com/index.php?fil...

 

"Thus, if the amount of the payment identifies the debt, then it must be
allocated to that debt."’

 

Please advise?

 

Yours sincerely”

 

The Council responded the same day stating :

 

“I can confirm that we responded, as attached, confirming that we do act
in accordance with the precedence set in the case or R v Miskin Lower
Justices 1953.”

 

On 11^th October 2019 you replied asserting :

 

“Apparently the Council does not act in accordance with the precedence set
in the case of R v Miskin Lower Justices, it does the opposite.”

 

and on 27th November 2019 you sent an e-mail stating :

 

“Dear FOI (TWBC),

 

You have my 11 October email to address and also the fact that my request
asked where the information had been obtained regarding the appropriation
of payments case law.

 

Yours sincerely,”

 

The Council replied on 2^nd December 2019 to your e-mails of 11^th October
and 27^th November advising :

 

“Your correspondence dated 11 October 2019 advised the following:

 

“The following is this time stated:

 

"I can confirm that we responded, as attached, confirming that we do act
in accordance with the precedence set in the case of R v Miskin Lower
Justices 1953."

 

Apparently the council does not act in accordance with the precedence set
in the case of R v Miskin Lower Justices, it does the opposite.”

 

Your correspondence dated 27 November 2019 requested where the information
had been obtained regarding the appropriation of payments case law.

 

In response, the Council does not believe the appropriation of payments
conflicts with the judgement.

 

The purpose of the Freedom of Information Act 2000 is to allow individuals
access to all ‘recorded’ information’. The guidance from the Information
Commissioner’s Office advises that the Act does not cover requests for
interpretations, to obtain answers from officers to questions raised or to
create new information.”

 

Later the same day you sent a further e-mail asking :

 

‘"Your correspondence dated 27 November 2019 requested where the
information had been obtained regarding the appropriation of payments case
law. "

 

I agree, so why have you interpreted the request to be something else?

 

On 16^th December 2019 the Council replied stating :

 

“I can confirm that Tunbridge Wells Borough Council does not hold any
recorded information regarding where the information had been obtained
regarding the appropriation of payments case law.

 

The purpose of the Freedom of Information Act 2000 is to allow individuals
access to all ‘recorded’ information’.  The guidance from the Information
Commissioner’s Office advises that the Act does not cover requests for
interpretations, to obtain answers from officers to questions raised or to
create new information.  

 

If you are dissatisfied with the information provided or the way in which
we have dealt with your request, you can request a review.   Please write
to Patricia Narebor, Head of Legal Partnership and Monitoring Officer at
the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to
[email address]  requesting a review of the
decision.

 

We will aim to deal with your request within 20 working days. If you
remain dissatisfied following our review, you can then appeal to the
Information Commissioner.”

 

Review Response

 

I have reviewed your initial request and the Council’s response and also
the subsequent correspondence referred to above.

 

The Freedom of Information 2000 (‘the FOI’) provides public access to
information held by public authorities. Recorded information includes
printed documents, computer files, letters, emails, photographs, and sound
or video recordings. Guidance issued by the Information Commissioner’s
Office (‘the ICO’) states that a public authority has only to provide
information it already has in recorded form and that it does not have to
create new information or find the answer to a question from staff who may
happen to know it. I can confirm that the Council does not have recorded
information that answers your question “Where did the Council obtain the
information regarding the appropriation of payments case law which
conflicts with the judgment in R. v Miskin Lower Justices [1953]?.”

 

The Council does in fact hold recorded information pertaining to the
parameters of the council tax payment processing system to automatically
allocate non-specific payments to the oldest account. However, having
consulted with the Council’s Revenues and Benefits Team we consider that
the information held is exempt under Section 43(2) of the Freedom of
Information Act 2000 that states “Information is exempt information if its
disclosure under this Act would, or would be likely to, prejudice the
commercial interests of any person (including the public authority holding
it).”. Guidance issued by the Information Commissioner’s Office advises
that Section 43 is engaged when there is “sufficient likelihood to
prejudice interests”.

 

It is important to establish the likelihood of prejudice to commercial
interests and in this case the withheld information relates to
commercially sensitive details concerning the overall parameter settings
on the software system and we consider that releasing this information
would prejudice the Council’s commercial interests.

 

In reaching this conclusion, we also have to consider the public interest
test which states “in all the circumstances of the case, the public
interest in maintaining the exemption outweighs the public interest in
disclosing the information”. We have considered the public interest test
and conclude that the benefits in maintaining the exemption outweigh the
public interest in disclosing the information.

 

If you are not content with the outcome of your review, you may apply
directly to the Information Commissioner for a decision. The Information
Commissioner can be contacted at: The Information Commissioner’s Office,
Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

 

Regards,

 

Keith E. Trowell

 

Keith E. Trowell, ACILEx | Team Leader (Corporate Governance)

Mid Kent Legal Services | Maidstone, Swale and Tunbridge Wells Borough
Councils |

Tel: 01622 602 267 | Ext: 2267

 

Maidstone Borough Council, Maidstone House, King Street, Maidstone, Kent
ME15 6JQ 

Swale Borough Council, Swale House, East Street, Sittingbourne, Kent, ME10
3HT

Tunbridge Wells Borough Council, Town Hall, Civic Way, Royal Tunbridge
Wells, Kent TN1 1RS

 

The contents of this e-mail, together with any attachments, may be
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1. mailto:[Tunbridge Wells Borough Council request email]

Dear Keith Trowell,

The Council states it holds recorded information pertaining to the parameter settings on its software system for payment allocation but wishes to rely on an exemption (commercially sensitive details) to withhold it.

I'm pretty certain I will already have this information so it would be a wasted exercise if I were to contest the councils decision not to disclose it. The information I have amounts to a description of how the Council Tax processing system allocates incoming payments in accordance with a number of payment rules (probably 26) and what options there are if the payment fails to match any of them. Unless there is information additional to this which justifies why the allocations are in accordance with relevant case law then I will already have the information.

Will you please confirm this.

Yours sincerely,

S Staffordson

Dear Keith Trowell,

P.S. The information I referred to in my previous email was this:

https://www.whatdotheyknow.com/request/4...

Yours sincerely,

S Staffordson

FOI (TWBC), Tunbridge Wells Borough Council

Dear S Staffordson,

Our Ref: Review of FOI F08304

I can confirm that the link you have provided (https://www.whatdotheyknow.com/request/4...) details the process using the Northgate Council Tax system. We do not use the Northgate Council Tax system and do not have anything recorded in this format.

Yours sincerely,

FOI Team

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

www.tunbridgewells.gov.uk

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [email address].

Dear FOI (TWBC),

I implied that I would be contesting the council's decision to withhold the information if it was not the document I exhibited. You have stated that the council does not use the Northgate Council Tax system and has nothing recorded in that format but not given any clue as to what information is held.

I anticipate you not providing anything of use so have decided against pursuing this. However, further to my email of 16 December 2019 my thoughts are that this issue should be put before the council's Monitoring Officer as it is his duty to ensure all decision making is lawful and the legal process described in that email should have been followed in arriving at the decision.

I understand that the software supplied to local authorities for the purpose of payment allocation has a parameter which can typically be set so that when a payment fails to match one of the rules it will, option 1, be applied to the in-year account, or option 2, be applied to the oldest years account. Therefore, it is within the council's control to maximise the frequency with which non-specific payments would be correctly applied i.e. to maintain the in-year account as a priority.

Regarding the Miskin case law, despite being decided in 1953, it is obviously relevant to Council Tax or there would unlikely be guidance tailored specifically for the benefit of Local Authorities. For example, Ipswich Council demonstrates its awareness of the case and other case law relevant to Council Tax liability in the following page exhibited presumably from a book entitled "Local Authority Revenues" https://www.whatdotheyknow.com/request/4...

The relevant passage summarises a billing authority's obligations regarding the allocation of payments where a customer has several accounts payable to the council in the context of R v Miskin Lower Justices and associated case law. The Institute of the Revenues Rating and Valuation (IRRV) has published similar in its 10 October 2002 Insight magazine https://tinyurl.com/y3hoyx9v

In respect of the council's statement; "where a payment is received which does not match any payment due...", there was no precedent set in the Miskin case based on payments matching the instalment amount of a particular year.

https://tinyurl.com/vk2pwhn (R v Miskin)

It is clear from the first paragraph of the judgment that the debtor (husband) did not once in any of the payments he made, make a payment matching an amount that he was required to under the terms of the maintenance/committal orders. The judge held that an appropriation was inferred from the circumstances to be the debt which it was most beneficial for the debtor to reduce (see quoted from the judgment).

"...the question whether the payments made by the husband should be appropriated to the original debt depended on the particular facts of the case. The husband would be likely to wish the payments to be utilized in discharge of the original debt..." (so that he would secure his release from the committal order).

As for the Council defending the practice of applying non-specified payment to the oldest year where a debt remains outstanding, the overwhelming evidence is that this does not accord with established case law.

Possibly the council has been influenced by the ruling in Devaynes v Noble 1816 merivale 529 (Clayton's Case). Clayton's Case is confined to cases where there is an unbroken account between the parties, or “one blended fund,” as in the case of a current account at a bank or between traders; it does not apply where there is no such account or fund, but merely distinct and separate debts. Snells Principles Of Equity's gives a definition in the document here: https://tinyurl.com/y3uzpd5n

A number of billing authorities wrongly rely on the Clayton Case ruling to justify allocating non-specific payment to the arrears because the effect of the rule is that in the absence of any express appropriation, each payment is impliedly appropriated to the earliest debt that is not statute-barred (payments are presumed to be appropriated to debts in the order in which the debts are incurred). They are of course misinformed because the rule does not apply to Council Tax as it consists of distinct insulated debts, between which a plain line of separation can be drawn (a bill is issued each year relating specifically to that year's liability).

Conveniently in the Clayton Case judgment the rules by which the application of indefinite payments are governed have been discussed. Clearly before any consideration is given as to the order in which the debts have arisen it must be asked, to which of the debts would the allocation be most beneficial to the debtor? (where the purpose for which a payment is made is unspecified it must be carried to that account which it is most beneficial to the debtor to reduce). Only if it was of no more benefit to the debtor which of the accounts payment was applied to could it be said that allocating non-matching payments to any arrears would be in accordance with established case law.

https://en.wikipedia.org/wiki/Devaynes_v... (Clayton's Case)

It is noteworthy that the Sri Lankan case, Ephraims v. Jansz (1895) 3 N.L.R. 142, similarly discussed the rules relating to the appropriation of payments in the context of the onerous nature of debt due on several accounts. The condition in the below quoted from the judgment could not be more relevant to the circumstances that are in issue with Council Tax liability:

https://www.lawnet.gov.lk/wp-content/upl... (Ephraims v. Jansz)

"If no such appropriation is made at the time of payment, the creditor must apply it to some claims which could be enforced at the time of payment and which at the moment is not in controversy."

Council Tax may be enforced (subject to payments being met) so a customer's in-year liability is not in controversy, providing his instalments are paid when due. An unspecified payment then, applying this principle, would have clearly been misappropriated if the council applied it to arrears so causing his in-year liability instalment to have not been met.

But regardless of whether the principle in the Sri Lankan case can be relied on, a customer having one liability more onerous for him than another must have his payment if it were unspecified carried to that account which it is most beneficial for him to reduce in line with other case authority mentioned.

The council's processing system applies payments in respect of the customer's implied intention but on a severely restricted basis (solely on the sum paid corresponding with an instalment amount). A payment matching a specific liability covers only one of several ways that the taxpayer's election may be implied. For example, case authority has consistently found that a debtor's intention may be indicated from the circumstances of the transaction (see Khandanpour v Chambers [2019] EWCA Civ 570 "Appropriation" from para 25). https://www.bailii.org/ew/cases/EWCA/Civ...

A debtor's payment pattern could indicate a debtor's intention to appropriate payment to a particular debt, so if a pattern had emerged of a customer's payment being made and accepted as credited to a particular debt then it would be inferred from the nature of the transaction, even if not expressed at the time by the customer, that he intended to ascribe it to that account. A customer having one liability more onerous for him than another must have his payment if it were unspecified carried to that account which it is most beneficial for him to reduce.

A customer who would be caused the additional burden from recovery action being taken in respect of his in-year liability as a consequence of payment being applied to his arrears, would clearly have intended his payment to be appropriated to his in-year liability to avoid unnecessary additional costs etc. Evidence of an intent to appropriate, although falling short of being express, would be provided in those particular circumstances to be an election to pay specifically on the current year's liability (the inference from the circumstances of a transaction is just as valid an election to pay specifically on one of several accounts as if his election were expressed).

A customer who made payment in an amount sufficient to prevent his in-year liability falling in arrears would have good cause to bring legal proceedings against the council if it were to allocate his payment to a previous year's charge (thus unnecessarily burdening him further) merely because it did not match the instalment amount. In any event, I understand that a billing authority's duty, as a priority, is to maintain a customer's in-year account with payments received in respect of his liability, so logically the frequency with which payment would be correctly applied would be maximised (under automated conditions) if the parameters in the Council Tax processing system were set so that any unspecified payments were applied to the current year's charge.

P.S. Your Monitoring Officer might wish to look at this from the following perspective:

Let's say a Customer has an outstanding balance of £70.00 secured by a Magistrates' court Liability Order from a previous year's charge. This gives councils the power to use various enforcement methods to collect the debt and adds costs to the arrears. The standard costs rubber stamped by the court are in the sum of £90.00 so the total amount owing the council for that year's charge has increased to £160.00. The customer now has his in-year Council Tax obligation to meet as well as the amount secured by a court order from the previous year's charge.

The customer's in-year payments are set at £121.95 for the first instalment and £120.00 for the remaining nine (£1,201.95 in total). The customer makes his first payment of £122.00 but because the council's system applies payments that do not exactly match to the oldest debt, his in-year Council Tax obligations have been detected by the computer system to have not been met even though the payment was made in sufficient an amount to prevent his in-year liability falling in arrears. Although Council Tax liability consists of distinct insulated debts, between which a plain line of separation can be drawn, the benefit to the council is the same (£122.00) whether payment is applied to the in-year account or arrears so there is no legitimate advantage for the council nor justification in engineering a further burden for the customer in respect of his in-year liability. The previous year's debt has already been secured with a court order which has no time limit restricting its use.

It is therefore reasonable to suspect that the council allocates non-matching payments to the arrears thus imposing an additional £90.00 standard costs in respect of the in-year engineered non-payment for a non-legitimate reason. But there is no theoretical advantage to the council in respect of the costs it claims because the law only entitles it to claim the actual expenditure it incurs. It would therefore be self defeating if the council were to go about obtaining court orders merely to benefit from the application if its costs claim was genuine and not inflated. Another possible motive would be to punish the customer, but this is troublesome for the council because it is making use of the Magistrates' court unnecessarily and in so doing burdening the customer with a further £90.00 debt. This by definition is penalising the customer with imposed costs which is impermissible according to established case authority. It was held on judicial review of a licensing case R v Highgate Justices ex parte Petrou [1954] 1 ALL ER 406 that costs should not exceed the proper costs incurred and should not be a penalty.

In the more recent case it was held that the Magistrates were bound to decide the matter of costs in accordance with the Council Tax (Administration and Enforcement) Regulations 1992 (the court needs to be satisfied that it was reasonable for the council to incur them) i.e. they would not reasonably have been incurred if it was not reasonable for the council to take steps to enforce payment (see paras 34 and 51 of R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252) http://www.bailii.org/ew/cases/EWHC/Admi...

In the aforementioned scenario the council would have impermissibly obtained a court order to enforce the misappropriated £122.00 element of the liability TWICE. This is because the payment which was intended to be applied to the in-year liability was misapplied to the arrears.

Each year's liability is a distinct debt so if the council has a secured debt in respect of one year's charge it cannot use the same court order to enforce payment if a customer defaults in a subsequent year (another order must be obtained from the court). However, the court order securing £160.00 debt from a previous year was effectively used to collect the sum of £122.00 which was actually paid in respect of the in-year liability (the amount secured by the previous court order reduced to £38.00). The customer's in-year liability did not only remain unchanged as a result of the misapplied £122.00 payment it actually increased by £90.00 because of the court costs attributable to the council's further application to the Magistrates' court (the in-year liability increased to £1,291.95 which was secured by a fresh court order).

The upshot of all this is that the customer has outstanding liability relating to two separate debts, each independently subject to enforcement by the various oppressive methods enabled by the court order. The customer's overall indebtedness arising from the misappropriated payment has immediately increased by £90.00 because of unnecessary court costs. In engineering the default, the council has clearly been shown to have unlawfully used an order securing a previous year's debt to enforce payment from the in-year liability which was perversely the cause of the Council Tax processing system triggering recovery in respect of the in-year liability (the same £122.00 amount has been subject to enforcement by two separate court orders).

Yours sincerely,

S Staffordson

FOI (TWBC), Tunbridge Wells Borough Council

1 Attachment

Dear S Staffordson,

Our Ref: Review of FOI F08304

With regards to your email dated 16th February 2020, Please see attached the way in which we apply debts.

Please note the following regarding unmatched payments ‘oldest debt’: If the box is ticked, it says unmatched payments to ‘current year’.

We consider that this request has been closed. If you are not content with the outcome of your review, you may apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

Yours sincerely,

FOI Team

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

www.tunbridgewells.gov.uk

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [email address].